Terms of Service

Last Updated: July 12, 2022

FORESYTE TERMS OF SERVICE

This Mobile Application Terms of Service (the “Agreement”) is made and entered into between Foresyte, Inc. (“Foresyte”) and you (hereinafter “Customer”, “you” and “your”) and applies to Customer’s access to and use of Foresyte’s mobile application (the “App”) and governs your use of materials and information provided by Foresyte hereunder which may include without limitation, an App tutorial and other in App content (the “App Content”).

 

In this Agreement, “you” refers to a purchaser of the App, who is an Adult.  An “Adult” is a person of legal age who can enter into a contract in the state in which the user resides; by purchasing a subscription to, registering for, downloading or otherwise using the App, you represent and warrant that you are an Adult and will be responsible for ensuring that any child authorized by you to use and access the App does so in accordance with this Agreement.

 

By creating an account and/or by accessing and/or using the App, you acknowledge and agree that you have read, understand and agree to be bound by all of the terms and conditions of this Agreement, and Foresyte’s Privacy Notice, which are presented to you when you first create a User Account through the App. If you do not agree with this Agreement, you must not use the App.  The terms and conditions of this Agreement will exclusively govern your access to, and use of the App and App Content and expressly supersedes prior agreements and/or arrangements between you and Foresyte. 

PRIVACY NOTICE

Customer acknowledges and agrees it will abide by Foresyte’s Privacy Notice, as may be changed from time to time by Foresyte in its sole and absolute discretion, and which such then-current version shall be incorporated herein by reference (“Privacy Notice”) and consents to any personal information Foresyte may obtain about customer being collected, stored, and/or otherwise processed in accordance with the Privacy Notice and this Agreement.

ARBITRATION NOTICE: EXCEPT FOR CERTAIN TYPES OF DISPUTES DESCRIBED IN THE ARBITRATION CLAUSE BELOW, YOU AGREE THAT DISPUTES BETWEEN YOU AND FORESYTE WILL BE RESOLVED BY MANDATORY BINDING ARBITRATION AND YOU WAIVE ANY RIGHT TO PARTICIPATE IN A CLASS-ACTION LAWSUIT AND/OR CLASS-WIDE ARBITRATION.

CHANGES TO TERMS

Subject to the terms and conditions set forth herein, Foresyte may, at any time and for any reason, in its sole and absolute discretion, make changes to the App and/or modify this Agreement. If Foresyte makes material changes to this Agreement, Foresyte will inform Customer by posting a notice on the App and changing the ‘Last Updated’ date above.  Foresyte may also provide Customer with additional forms of notice of modifications and/or updates as appropriate under the circumstances.  Any changes and/or modifications will be effective immediately upon posting the revisions to the App, and Customer waives any right it may have to receive specific notice of such changes and/or modifications. Customer’s continued use of the App will confirm Customer’s acceptance of such changes and/or modifications; therefore, Customer should frequently review this Agreement to understand the terms and conditions that apply to Customer’s use of the App and/or App Content. If Customer does not agree to the amended terms, Customer must stop using the App and/or App Content.

DESCRIPTION OF SERVICES

Application. Foresyte offers a software-as-a-service product that provides customers a lifestyle planning solution in the form of a mobile application.  This cutting edge App provides actionable, forward-looking insights to help users optimize their time and money through the use of the App’s calendar, budget and travel planning features.

Eligibility. To  purchase the App,  you  must  have  the  requisite power  and  authority  to  enter  into  this  Agreement and  meet  any  other  applicable  age  and  residency requirements.  The  App  is not  intended  for  and  should  not  be  used  by  anyone  under  the  age  of thirteen (13), and only with consent from a parent or legal guardian of a minor. 

Use of the App and Availability. Use of the App is at your own risk, including without limitation the risk that you might be exposed to content that is offensive, indecent, inaccurate, or objectionable. Foresyte retains the right, in its sole discretion, to deny service and/or access to and/or use of the App to anyone at any time for any reason without liability. While Foresyte uses reasonable efforts to keep the App accessible, the App may be unavailable from time to time.  Customer understands and agrees that there may be interruptions to the App and/or access to Customer’s account due to circumstances both within Foresyte’s control (e.g., routine maintenance) and outside of Foresyte’s control. The App may be modified, updated, suspended and/or discontinued at any time without notice and/or liability.

Creating an Account. Customer is required to establish an account through the App and must register and create an account by selecting a login identification (“Username”) and unique user password (“Password”) (collectively, a “User Account”).  When setting up a User Account, you are required to (i) abide by all applicable laws, rules, and regulations, as well as indicate agreement to this Terms of Service, (ii) provide contact information, and (iii) submit any other form of authentication required during the enrollment process, as determined by Foresyte in its sole and absolute discretion. If you establish a User Account with Foresyte, you agree to provide true, accurate and current information in connection with your User Account. You are responsible for updating and correcting information you have submitted to create and/or maintain your User Account. You are solely responsible for managing your User Account and are prohibited from creating more than one User Account and/or using other disguised identities when using the App. Foresyte may refuse to grant you a User Account with a name that impersonates someone else, if it may be illegal, vulgar, offensive, and/or if it may be protected by trademark and/or other proprietary rights, as determined by Foresyte in its sole and absolute discretion. Any Username and Password used for the App are for individual use only.  You are solely responsible for maintaining the security and confidentiality of the password you use to access your User Account.  You understand and agree that Foresyte shall have no responsibility for any incident arising out of, or related to, your account settings. Foresyte will assume that anyone using the App and/or transacting through your User Account is you. Therefore, you further agree to immediately notify Foresyte of any unauthorized use of your Username, Password and/or User Account and/or any other breach of security.

 

Your User Account  is non-transferrable and may not be sold, combined and/or otherwise shared with any other person. If you violate any of these limitations and/or this Agreement, Foresyte may terminate your User Account  immediately. Upon termination, the provisions of this Agreement that are by their nature intended to survive termination (including without limitation any disclaimers, limitations of liability, and indemnities) shall survive such termination. If Foresyte terminates your User Account, you may not subscribe under a new account unless Foresyte formally invites you. If you commit fraud and/or falsify information in connection with your access and/or use of the App, or in connection with your User Account, your account will be terminated immediately and Foresyte reserves the right to: (i) hold you liable for any and all damages that Foresyte suffers, (ii) pursue legal action through relevant local and national law enforcement authorities, and/or (iii) notify your Internet Service Provider of any fraudulent activity Foresyte associates with you and/or your access to and/or your use of the App.

Maintenance and Modification. Foresyte will make available to the Customer updates, patches and bug fixes with respect to the App as may, from time to time, be developed and made generally available by Foresyte to its customers.  Foresyte reserves the right to modify and/or discontinue, temporarily and/or permanently, the App and/or any features or portions thereof without prior notice and/or liability. You agree that Foresyte will not be liable for any modification, suspension and/or discontinuance of the App or any part thereof.

Communications From Foresyte. By using the App, you agree to receive certain communications in connection with the App.  When you access and/or use the App, you are communicating with Foresyte electronically, and you consent to receive communications from Foresyte electronically including but not limited to notices related to the App provided to you via email or through the App.  You agree that all agreements, notices, disclosures and/or other communications that Foresyte provides to you electronically satisfy any legal requirement that such communications be in writing.  Your consent to receive records and notices electronically will remain in effect until you withdraw it.  You may withdraw your consent to receive further records and notices electronically at any time by contacting Foresyte.  If you withdraw your consent to receive such records and notices electronically, we will revoke your access to the App.  Any withdrawal of your consent to receive records and notices electronically will be effective only after Foresyte has a reasonable period of time to process your request for withdrawal.

CONFIDENTIALITY

During your access to and/or use of the App, you may have access to certain information of Foresyte that is not generally known to others including any and all information relating to Foresyte  and its business including without limitation its business, legal, and operational practices, financial, technical, design, performance characteristics, commercial, marketing, competitive advantage or other information concerning the business and affairs, partnerships and potential partnerships, business model, fee structures, employees, funding opportunities, metrics, object code, source code, architecture, algorithms, techniques, formulas, processes, know-how, systems, ideas, inventions (whether or not patentable or copyrighted), feedback, procedures and techniques that have been or may hereafter be provided or shown to the other party, regardless of the form of the communication and the terms and conditions of this Agreement (collectively, the “Confidential Information”).  In addition, the structure, sequence, organization and code of the App constitute valuable trade secrets of Foresyte.  You will use commercially reasonable efforts to protect and prevent any access to the Confidential Information, using no less than a reasonable degree of care to protect such Confidential Information.

CUSTOMER RESPONSIBILITIES

Foresyte grants you the rights set forth herein, subject to the following conditions:

(a)    (b) 

 

 

 

(c)

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(e)

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(g)

(h)

(i)

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You shall not modify, disassemble, create derivative works, publicly display, reverse engineer and/or otherwise reduce to human-perceivable form all or any part of the App and/or App Content;

You agree not to submit and/or transmit any emails, User Content or other materials through the App that contain a virus, worm, Trojan horse and/or any other harmful component designed to interrupt, destroy and/or limit the functionality of any computer software and/or hardware and/or telecommunications equipment, and/or that is designed to obtain unauthorized access to any information;

You may not access all or any part of the App and/or App Content in order to build a product or service which competes with the App;

You shall not copy, store, reproduce, duplicate, transmit or distribute a significant portion of the content on the App;

You shall not obtain or attempt to obtain any data through any means from the App, except if Foresyte intends to provide and/or make it available to you;

You shall not pretend to be someone else, use someone else’s identity or misrepresent your affiliation with a person or entity;

You shall not copy or imitate part or all of the design, layout, and/or look-and-feel of the App, App Content and/or individual sections of it, in any form or media;

You are only authorized to view, use, copy for your records and download small portions of the content on the App for your informational, non-commercial use; provided that you leave all copyright and other proprietary notices intact;

You are responsible for the accuracy and quality of the data and content that you submit;

You agree to act in accordance with all applicable laws, rules and regulations;

You represent that you have the necessary permissions to use and authorize the use of User Content as described herein;

You shall not submit User Content (defined below), in any form, that is harmful, offensive, inaccurate or otherwise inappropriate including without limitation libelous, defamatory, discriminatory, harassing, racially, ethnically, hateful, threatening, obscene, infringing, profanatory, facilitates illegal activity, causes damage or injury to any person or property, and/or is otherwise objectionable;

You shall not imply that User Content is in any way sponsored or endorsed by Foresyte;

You agree not to intentionally hold Foresyte and/or its employees and/or directors up to public scorn, ridicule or defamation;

You will not promote and/or provide information about illegal activities and/or physical harm and/or injury to any group, individual, institution and/or property;

You will use commercially reasonable efforts to prevent unauthorized access to and/or use of the App and content provided on the App, and to notify Foresyte promptly of any such unauthorized access and/or use;

You shall not use the App for any unlawful purpose and/or to violate any federal, state, international law, code of conduct and/or other guidelines which may be applicable to the App provided; and

You will not submit User Content that violates, plagiarizes and/or infringes the rights of third parties including, without limitation, copyright rights, trademarks, rights of privacy or publicity and/or any other proprietary right; and/or that is designed to obtain unauthorized access to any information.

​You acknowledge that a breach of any of the foregoing terms and conditions and/or any other terms and conditions related to Foresyte’s intellectual property may result in irreparable and continuing damage to Foresyte for which monetary damages may not be sufficient, and agree that Foresyte will be entitled to seek, in addition to its other rights and remedies hereunder or at law, injunctive or all other equitable relief, and such further relief as may be proper from a court of competent jurisdiction. The terms of this Section shall survive the expiration or termination of this Agreement.  In addition, Foresyte shall not be subject to any obligations of confidentiality regarding any information or materials provided by you unless required by law or otherwise set forth in our Privacy Notice. The commercial use, reproduction, transmission or distribution of any information, software or other material available through the App without the prior written consent of Foresyte is strictly prohibited.

USE OUTSIDE DEFINED AREA

Please be aware that Foresyte’s App is directed to those individuals and entities located in the United States, and are subject to United States laws, including laws governing privacy and security of your information. It is not directed to any person or entity in any jurisdiction where (by reason of nationality, residence, citizenship or otherwise) the publication or availability of the App and its content, including its products and services, are unavailable or otherwise contrary to local laws or regulations. If this applies to you, you are not authorized to access or use the App. Those who choose to access the App from other locations do so at their own risk and are responsible for compliance with applicable local laws. This Agreement is written in English.  To the extent any translated version of this Agreement conflicts with the English version, the English version controls. In the event you are using the App outside of the United States, you agree as follows: (i) you consent to having your personal data transferred to and processed in the United States; (ii) if you are located in a country embargoed by the United States, or are on the U.S. Treasury Department's list of ‘Specially Designated Nationals’ you will not engage in commercial activities on the App (such as advertising or payments); and/or (iii) you will not use the App if you are prohibited from receiving products, services or software originating from the United States.

FEES

Subscription Fees. We may offer a free trial subscription for the App.  A free trial provides you with access to the App for a period of time, with details specified when you sign up for the offer.  Unless you cancel before the end of the free trial, or unless otherwise stated, your access to the App will automatically continue and you will be billed the applicable fees for the App.  Following the initial free trial, Customer will be charged a paid monthly or annual subscription to the App through Foresyte’s third-party provider, Apple Inc. (“Apple”) and shall pre-pay a monthly or annual subscription fee for continued use of the App (“Subscription Fee”) plus any applicable taxes.  If Customer selects the “Monthly Subscription Fee” option when setting up their account, Customer will be charged the monthly subscription fee disclosed to Customer prior to purchase through the Apple App Store to use the App. If Customer selects the “Annual Subscription Fee” option when setting up their account, Customer will be charged the annual subscription fee disclosed to Customer prior to purchase through the Apple App Store to use the App .  If it your responsibility to know when the free trial will end.  We reserve the right to limit your ability to take advantage of multiple free trials.

Price Changes. Notwithstanding anything herein to the contrary, fees are subject to change by Foresyte at any time upon prior notice to the Customer and such change shall take effect at the start of the next subscription period following the date of the price change. Your continued use of the App after any price change is acceptance of the new price. If you do not agree to a price change, you can reject the change by unsubscribing to the applicable paid subscription to the App prior to the price change going into effect.  All fees, expenses and taxes due hereunder are non-refundable and will be paid in U.S. dollars.  Please note that Foresyte does not provide price protection or refunds for existing subscribers in the event of a price drop or promotional offering for new subscribers. Foresyte may offer promotional trial subscriptions to access the App for free or at special discounted prices. If you sign up for a trial subscription, your rights to use the App are limited by the terms of such trial.

Third-Party Terms. When purchasing a paid subscription to access the App through Apple, separate terms and conditions with Apple apply to your use of the App in addition to this Agreement. Please contact Apple regarding any payment issues or to manage your subscription. In the event Foresyte does not receive the applicable fees for Customer’s paid subscription to the App on a timely basis, including without limitation due to an invalid account and/or expired credit card number, Foresyte may, in addition to other available remedies, disable the password, account and access to all or part of the App. In the event of the foregoing, Foresyte shall not be obligated to provide any or all of the App until such fees and/or charges are received in full by Foresyte. 

Subscription Renewal. By activating a paid User Account, you agree that your subscription will automatically renew for the same subscription term on the next business day after your previous subscription ends. You authorize Foresyte through its third-party provider, Apple, to charge you for the subscription term, unless you cancel your subscription prior to its renewal date through the procedures described in the Subscription Cancellation section below. Apple will charge your credit card (or the other payment method you used) each year, month, or other applicable period (depending on the term that you selected) for the then-current applicable price.

Subscription Cancellation. The App and your rights to use the App will end at the end of the paid period of your subscription.  If you do not pay the fees, we may make reasonable efforts to notify you and resolve the issue; however, we reserve the right to disable or terminate your access to the App (and may do so without notice).  To cancel any subscription and avoid future billing, you may cancel such subscription prior to its renewal date through the App or through Apple.  Subscriptions purchased via the App and/or Apple are subject to Apple’s payment policies.  Upon cancellation, you will continue to have access to your User Account for the period of time that has been prepaid. After you cancel your User Account, Foresyte will not charge you any subscription fees after the expiration of your then-current subscription. Please note that Foresyte does not provide full or partial refunds for prepaid sums. In any event, you will be able to continue to use the App throughout the remainder of the subscription period for which you have already paid.

ERRORS, INACCURACIES, OMISSIONS, AND PERFORMANCE

Occasionally there may be information on the App and/or App Content that contain typographical errors, inaccuracies, and/or omissions that may relate to services, information, and data.  Foresyte reserves the right to (i) correct any errors, inaccuracies, and/or omission; and/or (ii) make changes to content, descriptions, service and/or other information without obligation to issue any notice of such changes, except as prohibited by law. Customer further agrees that Foresyte shall not be liable for any inaccuracies or functionality of the App and/or App Content based on data accuracy of such third parties and related services.

PROPRIETARY RIGHTS AND LICENSES

Ownership. The App, App Content and the infrastructure used to provide the App are proprietary to Foresyte, its affiliates, and/or other content providers.  By using the App and accepting this Agreement, Foresyte grants you a limited, personal, nontransferable, nonexclusive, revocable right to access and/or use the App pursuant to this Agreement and to any additional terms and policies set forth by Foresyte.  Neither this Agreement nor your use of the App convey and/or grant to you any rights: (i) in or related to the App except for as expressly set forth herein; and (ii) to use or reference in any manner Foresyte’s names, logos, product and service names, trademarks or services marks or those of Foresyte’s licensors.

Reservation of Rights. The materials, headers, videos, illustrations, photographs, graphics and/or any other content on the App, as well as the organization and layout of the App, are copyrighted and are protected by United States and international copyright laws and treaty provisions.  Subject to the limited rights expressly granted hereunder, Foresyte and/or its third-party providers reserve all right, title and interest in and to the App and content, including all related worldwide intellectual property rights.  No rights are granted to you hereunder other than as expressly set forth herein.

User Content. Please carefully choose the information, content, advice, discussions, images, photographs, video, audio, sounds, descriptions, comments, responses, posts and/or messages (collectively, the “User Content”) you choose to submit or transmit through the App from time to time.  You assume all risks associated with User Content, including anyone’s reliance on its quality, accuracy, and/or reliability by you.  You also represent that you own, and/or have the necessary permissions to use and authorize use of User Content as described in this Agreement. You hereby grant Foresyte a worldwide, perpetual, non-exclusive, royalty-free, irrevocable, assignable, sub-licensable, transferable license to use the User Content for purposes of providing the App, including without limitation sharing such User Content with third parties. Notwithstanding anything herein to the contrary, Foresyte may collect aggregated, anonymized data that cannot identify any person and that is derived from or created through the use of the App in order to learn about its users generally, improve its product and services and market to new and current users.  

Other. User Content does not necessarily reflect the opinion of Foresyte. Foresyte reserves the right to remove, screen, edit or reinstate User Content from time to time in its sole and absolute discretion without notice. Foresyte has no obligation to retain or otherwise provide Customer with copies of User Content.  Foresyte reserves the right to take any action it deems necessary to protect the personal safety of its users and/or the public.  Foresyte has no liability or responsibility to Customers and/or any other person and/or entity for performance and/or nonperformance of the aforementioned activities. 

Submissions. Foresyte or any of its employees do not accept or consider unsolicited ideas, including but not limited to ideas relating to processes, technologies, product enhancements, or product names.  Please do not submit any unsolicited ideas, content, artwork, suggestions, or other works (“Submissions”) in any form to Foresyte.  The sole purpose of this policy is to avoid potential misunderstandings or disputes when Foresyte’s products might seem similar to ideas you submitted to Foresyte.  If you do send Foresyte your ideas, you agree to the following: (i) your Submissions and their contents will automatically become the property of Foresyte, without any compensation to you, (ii) Foresyte may use or redistribute the Submissions and their contents for any purpose and in any way, (iii) there is no obligation for Foresyte to review the Submission, and (iv) there is no obligation to keep any Submissions confidential.

SPAMMING

Gathering email addresses from Foresyte through harvesting or automated means is prohibited. Posting and/or transmitting unauthorized and/or unsolicited advertising, promotional materials, and/or any other forms of solicitation to other users is prohibited. Foresyte also prohibits crawling, scraping, caching, and/or otherwise accessing any content on the App via automated means (except as may be the result of standard search engine protocols and/or technologies used with Foresyte’s express written consent).

NO UNLAWFUL OR PROHIBITED USE

As a condition of your use of the App, you warrant to Foresyte that you will not use the App or App Content for any purpose that is unlawful or prohibited by these terms, conditions, and notices. Customer may not use the App and/or App Content in any manner that could damage, disable, overburden, and/or impair the App and/or interfere with any other party’s use and/or enjoyment of the App. Customer may not obtain and/or attempt to obtain any materials and/or information through any means not intentionally made available and/or provided for through the App.

USER VERIFICATION

Foresyte may, in its sole discretion, verify a user’s identity prior to allowing such user to access and/or use the App.  Foresyte may, without liability, refuse to process and/or may cancel access to the App, as reasonably deemed necessary, to comply with applicable law and/or to respond to a case of misrepresentation, fraud and/or known and/or potential violations of the law and/or this Agreement. Foresyte does not itself verify the information and/or the qualifications of other users of the App, nor does it evaluate or control in any ongoing manner exchanges between users.  Any reviews, opinions or statements expressed by a user are of those of the user alone, and are not to be attributed to Foresyte and Foresyte does not take on any liability related thereto. Foresyte cannot and does not assume responsibility for the accuracy, completeness, safety, reliability, timeliness, legality and/or applicability of anything said, written, posted, displayed and/or otherwise made available by any user on and/or in relation to the App.

SMS, DATA CHARGES AND MOBILE PHONES

SMS Text Service. By checking the box to provide consent to text messages, you authorize Foresyte and its affiliates, vendors and/or partners to send calls or text messages, including messages that may originate from an automatic dialer, to the mobile phone number provided to Foresyte. Through this program you will receive communications on your mobile device.

Opt In. By opting in for text messaging service, you, the user, agree to the terms of this Agreement as well as our Privacy Policy as it pertains to specific usage of text messaging service. By participating in the text messaging service, you agree to receive autodialed or prerecorded transactional and/or marketing mobile messages at the phone number associated with opt-in, and understand that consent is not required to make any purchase from Foresyte. While recipients shall consent to receive messages sent using an autodialer, the foregoing shall not be interpreted to suggest or imply that any or all of our mobile messages are sent using an automatic telephone dialing system (“ATDS” or “autodialer”). 

Opt Out. If you do not wish to continue participating in the text messaging service or no longer agree to this Agreement, you agree to reply STOP to any mobile message in order to opt out of the text messaging service. You may receive an additional mobile message confirming the decision to opt out.   You may revoke your consent to receive SMS messages at any time.  Your carrier's standard messaging rates apply to your entry or submission message, our confirmation and all subsequent SMS correspondence.

Data Charges. Please contact your wireless carrier for information about your messaging plan. Message and data rates may apply.  Data obtained from you in connection with this SMS service only include your cell phone number, your carrier's name, and the date, time and content of your messages and other information that you may provide. Your carrier may impose message or charge limitations on your account that are outside of our control. All carrier charges are billed by and payable to your mobile service provider. Your wireless carrier and other service providers may also collect data about your SMS usage, and their practices are governed by their own policies. We will only use information you provide to the service to transmit your text message or as otherwise described in this Agreement and/or Privacy Policy. Nonetheless, we reserve the right at all times to disclose any information as necessary to satisfy any law, regulation or governmental request. When you complete forms online or otherwise provide us information in connection with the service, you agree to provide accurate, complete, and true information. 

Wireless Data. You represent that you are the owner or authorized user of the wireless device you use to subscribe for the service, and that you are authorized to approve the applicable charges.  We will not be liable for any delays or failures in your receipt of any SMS messages as delivery is subject to effective transmission from your network operator and processing by your mobile device. SMS message services are provided on an AS IS, AS AVAILABLE basis.  You are responsible for any mobile charges that you may incur for using the App, including but not limited to data and text message charges. If you are unsure what those charges may be, you should ask your service provider before using the App.

TERMINATION

This Agreement will remain in full force and effect until either party requests to terminate the relationship.  The rights granted by Foresyte to use the App is predicated upon Customer’s (a) acknowledgment and acceptance of this Agreement; (b) agreement to not share the access granted with any other person or entity; and (c) compliance with the terms and conditions set forth herein.  Upon termination, you agree to immediately discontinue use of the App.  If you violate, or if Foresyte has grounds to suspect that you violated, this Agreement and/or other use parameters included on the App, Foresyte reserves the right to suspend and/or terminate your User Account, and/or refuse your use of the App (or any portion thereof) at any time.  Foresyte  also reserves the right, in its sole discretion, to terminate your access to the App or any portion thereof at any time, without cause and/or without notice and without liability.  In the event you share the access granted to you with any person and/or entity, and/or misuse the App by any means actionable under a federal, state, and/or local statute, code, regulation, law, and/or civil action, Foresyte will consider your and/or  the unauthorized user’s access as having been acquired by fraud and/or misrepresentation and will terminate your access and/or use of the App immediately.  In such a case, Foresyte retains the right to seek civil and/or criminal redress, the entire cost of which shall be borne solely by you. Upon termination, your User Content and/or other information within the App may not be retrievable and Foresyte will have no obligation to maintain User Content in Customer’s account following termination. Notwithstanding anything herein to the contrary, Customer acknowledges and agrees that Foresyte may refuse to close or terminate your account in certain situations as Foresyte deems to be appropriate in its sole and absolute discretion, such as if Customer is attempting to evade an investigation or if you have amounts owed to Foresyte or Foresyte’s third-party provider hereunder.

INDEMNIFICATION AND WAIVER

You shall indemnify, defend and hold harmless Foresyte, its officers, agents, employees, contractors, subcontractors, suppliers and representatives from and against any and all claims, demands, proceedings, losses, costs, damages, awards, fees, expenses, and/or liabilities of any nature (“Claim”) arising out of and/or in the relation to (i) your violation of any law and/or the rights of a third party (ii) any breach of this Agreement and/or Privacy Notice by you, your officers, agents, employees, contractors and/or representatives, (iii) your use of the App, (iv) use of User Content in the event of an infringement, violation, trespass, contravention and/or breach of any third party, and/or that such use constitutes the unauthorized use and/or misappropriation of any trade secret of any third party, and/or (v) fraud you commit and/or your intentional misconduct and/or negligence. You shall give prompt notice to Foresyte upon your receipt of notice of any Claim against you which might give rise to a claim against Foresyte. 

 

You acknowledge and agree that by accessing and/or using the App, you may be exposed to materials (including shared group content) from others that you may consider offensive, indecent or otherwise objectionable, and agree to accept that risk.

DISCLAIMER OF WARRANTIES

YOU EXPRESSLY UNDERSTAND AND AGREE THAT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW:

 

THE APP, AND ANY CONTENT, ARE PROVIDED BY FORESYTE TO YOU ON AN "AS IS," "AS AVAILABLE" BASIS WITHOUT ANY REPRESENTATIONS AND/OR WARRANTIES OF ANY KIND WHETHER EXPRESS, STATUTORY AND/OR IMPLIED, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, QUIET ENJOYMENT, MERCHANTABILITY, AND/OR FITNESS FOR A PARTICULAR PURPOSE, SYSTEMS INTEGRATION, ACCURACY, AND FROM COURSE OF DEALING, USAGE AND/OR TRADE PRACTICE, ALL OF WHICH FORESYTE EXPRESSLY DISCLAIMS.WITHOUT LIMITING THE FOREGOING, FORESYTE AND/OR ITS LICENSORS MAKE NO WARRANTY THAT (A) THE APP, CONTENT, AND/OR MATERIALS WILL MEET YOUR REQUIREMENTS AND/OR WILL BE CONSTANTLY AVAILABLE, UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE; (B) THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE APP, CONTENT AND/OR MATERIALS WILL BE EFFECTIVE, ACCURATE AND/OR RELIABLE; (C) FORESYTE WILL NOT BE LIABLE AND/OR OTHERWISE RESPONSIBLE FOR ANY FAILURE AND/OR DELAY IN UPDATING THE APP AND/OR ANY CONTENT; AND/OR (D) THAT THE APP IS FREE OF VIRUSES OR OTHER HARMFUL CODE. NO ADVICE AND/OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM FORESYTE AND/OR THROUGH AND/OR FROM USE OF THE APP SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THIS AGREEMENT. YOU ASSUME TOTAL RESPONSIBILITY AND THE ENTIRE RISK FOR YOUR USE OF THE APP.

LIMITATION OF LIABILITY

YOUR USE OF THE APP AND CONTENT IS AT YOUR OWN RISK.  IN NO EVENT SHALL FORESYTE, ITS OFFICERS, DIRECTORS, EMPLOYEES, PARTNERS, LICENSORS, AND/OR SUPPLIERS BE LIABLE TO YOU AND/OR ANYONE ELSE FOR ANY SPECIAL, INCIDENTAL, INDIRECT, CONSEQUENTIAL AND/OR PUNITIVE DAMAGES OF ANY KIND WHATSOEVER, INCLUDING WITHOUT LIMITATION, ATTORNEY’S FEES, THOSE RESULTING FROM LOSS OF USE, DATA AND/OR PROFITS, WHETHER OR NOT FORESEEABLE, REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), WARRANTY, STRICT LIABILITY, AND/OR ANY OTHER LEGAL OR EQUITABLE THEORY, EVEN IF FORESYTE  HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES IN ADVANCE.  THE FOREGOING SHALL APPLY DESPITE ANY NEGLIGENCE, MISCONDUCT, ERRORS AND/OR OMISSIONS BY FORESYTE, ITS EMPLOYEES, REPRESENTATIVES AND/OR AGENTS.  BECAUSE SOME STATES DO NOT ALLOW THE EXCLUSION AND/OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, IN SUCH STATES, FORESYTE’S LIABILITY IS LIMITED TO THE MAXIMUM EXTENT PERMITTED BY LAW.

 

FORESYTE’S MAXIMUM AGGREGATE LIABILITY, AND THE AGGREGATE LIABILITY OF ITS PARTNERS AND LICENSORS, TO YOU IN ANY CIRCUMSTANCE ARISING OUT OF AND/OR RELATING TO THE APP IS LIMITED TO $100 DOLLARS.

THIRD PARTY SERVICES

The App may be made available and/or accessed in connection with third party services and content that Foresyte does not control, including without limitation through the Apple Store or other app stores (the “App Stores”).  You agree to comply with, and your access to the App is conditioned upon your compliance with all applicable, terms and use of service, and other policies with such App Stores. Your correspondence, participation in, and/or any other dealings with third parties found through the App are solely between you and such third party. Foresyte does not endorse such third-party services and content and in no event shall Foresyte be liable for any products and/or services of such third-party providers.  You acknowledge that the App Stores (and their subsidiaries) are a third party beneficiary of this Agreement and will have the right to enforce the Agreement. You agree that Foresyte shall not be responsible for any loss and/or damage of any sort incurred as a result of any such dealings and/or as the result of the presence of such third parties through the App. Moreover, Foresyte shall not be responsible and/or liable for the accuracy, quality, suitability, currency and/or content of the statements and/or conduct of any third party on the App. You are solely responsible for the costs, expenses and infrastructure required to support your use of the App. You acknowledge and agree that Foresyte utilizes third party providers to provide the App, and any terms and conditions related to such third-party providers products and/or services shall govern the use of such third-party providers’ products and/or services. You acknowledge and agree that Foresyte is not liable for the performance of any third-party providers’ products and/or services.

DMCA COPYRIGHT POLICY AND COPYRIGHT AGENT

Foresyte respects the intellectual property rights of others and expects you to do the same. Foresyte reserves the right to: (a) terminate your User Account or any other user who infringes third-party copyrights, (b) block access to and/or remove material that Foresyte believes in good faith to be copyrighted material that has been illegally distributed by you and/or other third parties, and/or (c) remove and discontinue service to repeat offenders.  Foresyte will respond to clear notices of copyright infringement when you provide the following: 

(i)

(ii)

(iii)

(iv)

(v)

(vi)

A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed;

Identification of the copyrighted work claimed to have been infringed;

Identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled;

Information sufficient to permit Foresyte to contact you, such as your physical address, telephone number, and, if available, an electronic mail address;

A statement that the complaining party has a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law; and

A statement that the information in the notification is accurate, and under penalty of perjury, that you are authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.

Contact information for Foresyte’s DMCA Agent for notice of claims of copyright infringement is Foresyte, Inc., Attn: Copyright Agent, 3021 N Southport Ave., Unit 4A, Chicago, IL 60657  The Copyright Agent will not remove content from the App in response to phone or email notifications regarding allegedly infringing content, since a valid DMCA notice must be signed, under penalty of perjury, by the copyright owner or by a person authorized to act on his or her behalf. Please submit such notifications by ordinary mail only and as further described by this section. The Copyright Agent should be contacted only if you believe that your work has been used or copied in a way that constitutes copyright infringement and that such infringement is occurring on the App or linked to and/or from the App. All other inquiries directed to the Copyright Agent will not be responded to.

DISPUTE RESOLUTION

Disputes. Foresyte wants to address your concerns without needing a formal legal case. Before filing a claim against Foresyte, you agree to try to resolve the dispute informally by contacting us at     .  . The parties will try to resolve the dispute within ninety (90) days after receipt of written notice, but if the parties are unable to resolve any claims related to this Agreement within such timeframe, you and/or Foresyte agree to resolve any claims related to this Agreement through final and binding arbitration, except as set forth under ‘Exceptions to Agreement to Arbitrate’ section below and/or your ability to opt out as described below.

Opt-Out. You can opt-out and decline this agreement to arbitrate by contacting Foresyte within thirty (30) days from the date that you first became subject to this arbitration provision (i.e.: the date you initially accepted this Agreement).  You must write us at Foresyte, Inc.,  Attn: Opt-Out Arbitration, 3021 N Southport Ave., Unit 4A, Chicago, IL 60657. If you opt out, neither you nor Foresyte can require the other to participate in an arbitration proceeding.

Arbitration Procedures. Except as regarding any action seeking equitable relief, including without limitation for the purpose of protecting any Foresyte Confidential Information and/or intellectual property rights, or except in the event the claim meets the requirements set forth in the ‘Exceptions to Agreement to Arbitrate’ section below and/or if you opt-out of arbitration as described above, any and all controversies and/or claims arising out of or relating to this Agreement and/or the App shall be settled by binding arbitration in accordance with the commercial arbitration rules, in effect at the time the proceedings begin, of the American Arbitration Association. Any such controversy and/or claim shall be arbitrated on an individual basis, and shall not be consolidated in any arbitration with any claim or controversy of any other party. The arbitration shall be held in Cook County, Illinois or any other location Foresyte and you agree to. All information relating to and/or disclosed by any party in connection with the arbitration of any disputes hereunder shall be treated by the parties, their representatives, and the arbitrator as proprietary business information. Such information shall not be disclosed by any party or their respective representatives without the prior written authorization of the party furnishing such information. Such information shall not be disclosed by the arbitrator without the prior written authorization of all parties. The prevailing party of any such arbitration shall be entitled to collect from the other party all costs incurred in such dispute, including reasonable attorneys’ fees and any arbitration costs and fees. Judgment upon the award returned by the arbitrator may be entered in any court having jurisdiction over the parties or their assets or application of enforcement, as the case may be. Any award by the arbitrator shall be the sole and exclusive remedy of the parties. The parties hereby waive all rights to judicial review of the arbitrator's decision and any award contained therein.

Exceptions to Agreement to Arbitrate. Notwithstanding anything herein to the contrary, you and Foresyte each agree that the following claims are exceptions to this arbitration clause and will be brought in a judicial proceeding in a court of competent jurisdiction (i) any claim related to actual or threatened infringement, misappropriation or violation of a party’s copyrights, trademarks, trade secrets, patents, or other intellectual property rights, (ii) any claim seeking emergency injunctive relief based on exigent circumstances (e.g., imminent danger or commission of a crime, hacking, cyber-attack), or (iii) any claim that qualifies in small claims court in Cook County, Illinois.

Judicial Forum for Disputes. In the event that the agreement to arbitrate is found not to apply to you and/or your claim, you and Foresyte agree that any judicial proceeding (other than small claims actions) will be brought in the federal or state courts of Cook County, Illinois.  Both you and Foresyte  consent to the foregoing venue and jurisdiction. The prevailing party of any such dispute shall be entitled to collect from the other party all costs incurred in such dispute, including reasonable attorneys’ fees.

California Users. Pursuant to California Civil Code Section 1789.3, any questions about pricing, complaints, or inquiries about Foresyte can be sent to our agent for notice, Attn: Stephen Eddy  at 3021 N Southport Ave., Unit 4A, Chicago, IL 60657 , or by phone at (303)888-0698 .  California users are also entitled to the following specific consumer rights notice: The Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs may be contacted in writing at 1625 North Market Blvd., Sacramento, CA 95834, or by telephone at (916) 445-1254 or (800) 952-5210.

MISCELLANEOUS

If any provision(s) and/or term(s) of this Agreement shall become and/or be declared illegal, invalid and/or unenforceable for any reason whatsoever, such term(s) and/or provision(s) shall be divisible from the other terms and conditions and shall be deemed to be deleted from it.  This Agreement shall be governed in all respects by the laws of the State of Illinois, without reference to its choice of law rules. If an applicable law is in conflict with any part of this Agreement, this Agreement will be deemed modified to conform to the law and the other provisions will not be affected by any such modification. No waiver by either you and/or Foresyte of any breach and/or default and/or failure to exercise any right allowed under this Agreement is a waiver of any preceding and/or subsequent breach and/or default and/or waiver and/or forfeiture of any similar and/or future rights under this Agreement. All provisions of this Agreement which by their nature should survive termination shall survive termination, including, without limitation, content provisions, payment provisions, ownership provisions, warranty disclaimers, indemnity and limitations of liability. You may not assign your rights and/or obligations under this Agreement to any other party without Foresyte’s prior written consent.  Foresyte may assign its rights and/or obligations under this Agreement to any other party at its discretion. This Agreement along with the Privacy Notice constitute the complete and exclusive understanding and agreement between the parties regarding the subject matter herein and supersede all prior or contemporaneous agreements or understandings written or oral, relating to its subject matter.

CONTACT US

If you would like to request additional information regarding this Agreement or have an inquiry about the App, please contact us at